Things you might not know (for a Thursday)

Am I about to write about this just for the click-bait possibilities? Probably.

Does that make the underlying topic less worth discussing? I hope not.

So there used to be a time when people could become lawyers without ever having to go to law school. You could effectively apprentice in the law where you could work for and study with (through working for mostly) a practicing lawyer and then be able to sit for a bar examination and, if you passed, then become licensed to practice.

At some level, that sort of model makes some sense if you believe the ultimate goal of a legal education is for someone to be able to actually practice law at the end of their professional education.

In fact, many voices of criticism of modern law school education tend to focus on how disconnected it can be from teaching people how to actually practice law.

The flip side of course is that law school does a very fine job of teaching people how to think like a lawyer — a skill that readily translates to the ability to practice a variety of kinds of law. Whereas the idea of apprenticing into the practice of law may be more limited in that if you apprentice for a probate litigator you likely will learn how to be a good probate litigator but you might not learn that in a way that would translate into practicing some other type of law.

What you might not know (and I certainly didn’t before today) is that you can still apprentice into the law in California. I learned this from today’s news over at Above the Law that Kim Kardashian (you may have heard of her) is pursuing that path to becoming a California lawyer.

Mulling all of that over has returned me to a thought that I kick around from time-to-time from admittedly a different perspective but that is certainly related.

If successfully attending law school and passing the bar exam actually do each have real meaning such that both have to be required to practice law, then why shouldn’t (other than character and fitness requirements as an additional piece of the puzzle) the logical consequence of that be that anyone who has managed to do that to be able to practice law in at least one state, then be considered sufficiently qualified to be able to then at least apply to be admitted in any other state without having to jump through lots of procedural hoops? (For today, I’m not even going to go the step further that might also be a legitimate question if we really want to get contemplative.)

Quite a lot of states are pretty flexible in their procedures for letting folks already licensed in one jurisdiction “waive in” to get a license in that jurisdictions without having to take another bar exam. Some states are still pretty parochial in their approach – particularly states that have a good bit of beach front property.

Not breaking: Dentons didn’t have to say “aloha” to Hawai’i

Well, at least not the goodbye, “aloha.” They can still say the other one as much as they want.

So, you probably have seen a headline somewhere in your online surfing about this wacky issue litigated before the Hawai’i Supreme Court. But, just in case you didn’t, here’s all that I think you need to know about it.

Dentons, who has featured here a few times before, would appear to be the world’s largest law firm at present. Back in 2018, it swallowed up a Hawai’i law firm. Since then it has had lawyers in its firm practicing law in Hawai’i. Not the stuff so far of an interesting story.

In one of the pieces of litigation its lawyers have been handling in Hawai’i, they filed a motion to seek pro hac vice admission on behalf of a non-Dentons lawyer licensed in California. The opposing party opposed the pro hac motion not on the basis of any problem with the California lawyer, but on grounds that Dentons was engaged in the unauthorized practice of law. Why? Is a question you, dear reader, might ask. Well, because not every lawyer at Dentons is licensed in Hawai’i.

Sounds like a crazy argument doesn’t it?

It actually was a crazy argument, but it was an argument supported by a slightly-messed up court rule. You can read the entirety of the 21-page opinion resolving the situation here.

The short version of what you’d find if you had the time to read that 21-page opinion is that it is true that Hawai’i used to have extremely restrictive and parochial rules preventing anyone who was not a Hawai’i-licensed lawyer from serving as a partner in a law firm in Hawai’i.

Believe it or not, those restrictions were a part of Hawai’i’s ethics rules until 1981. Beginning with changes starting in 1981, those restrictions were lifted and modified. A number of places in the present ethics rules in Hawai’i clearly indicate that it must be true that a multi-state law firm can have offices in Hawai’i. (One of them is Hawai’i’s RPC 7.5 about letterhead. This marks the first time in history I’ve found an ethics rule about letterhead to have been a helpful part of a state’s ethics rules.) But there was still one Hawai’i rule, not in the ethics rules but a different Hawai’i Supreme Court rule that had potentially problematic language if you were part of a multi-state law firm — Haw. Sup. Ct. R. 6 “Lawyer’s Professional Business Organizations.”

Specifically, Section (d)(1) of that rule provided that “[s]hares or interests in a lawyers’ professional business organization may be owned only by a lawyers’ professional business organization or by one or more persons licensed to practice law in this state by this court….”

Sometimes it only takes the slimmest of reeds for a certain kind of lawyer to be willing to make what otherwise seems like an outrageously foolhardy argument on behalf of a client. Turned out that the lawyer opposing Dentons in this case was, at least for a short period of time, that kind of lawyer. (NB: If you are looking for further proof of any pet theories you have about living in a simulation, the lawyer’s surname is (no kidding) Bickerton and, according to this article from a publication in Hawai’i he had the chutzpah to actually call one of Dentons’ arguments a “dumb ass argument.”)

The Hawai’i Supreme Court was able to dispose of this issue, and avoid having to address serious constitutional questions that would have arisen had Bickerton’s client’s rule interpretation been given merit, by explaining that the rule in question had been superseded by implication.

The court also ended its opinion by addressing any concerns that might be raised over the possibility that attorneys not licensed in Hawai’i could direct the conduct of Hawai’i lawyers without being subject to the jurisdiction of the disciplinary authorities in Hawai’i. It did so by referencing case law that (thankfully) concluded that Oregon general counsel for an Oregon company was not engaged in unauthorized practice in Hawai’i by assisting from Oregon and being actively involved with local Hawai’i counsel.

That portion of the opinion seems only to have been necessary because Hawai’i is still operating with an antiquated version of RPC 5.5 in place. While the Hawai’i Supreme Court has these issues in the front of its mind, it really ought to give some thought to adopting a version of ABA Model Rule 5.5 to make things a bit easier over there.

Until then, Me ka aloha pumehana.

Yet another reason for change. Pretty much the most serious reason.

So there are things that can really make you feel small.  And there are things that can really lead to despair and a feeling of helplessness.  Fortunately, there are few things that do both at once.  The report from the Intergovernmental Panel on Climate Change can do both of those things pretty simply.  If you haven’t read it, or at least parts of it, you can do so at this link.  If you don’t want to read the report itself (or parts of it), then you can go read one of the many articles discussing at length its sobering warnings of what the future (the close-enough-future that we can imagine ourselves in it pretty easily) here or here or here for example.

You really ought to read as much about it as you can because, to a pretty significant extent, whether we have a habitable planet is just about all that really matters.  And, though the more you digest the news about the situation the easier it is to feel small and helpless, the reaction needs to be significantly different from that.

Why am I writing about this at a legal ethics blog?  (Beyond the cop-out sort of reason in which I would tell you it feels a bit petty to write about anything else given the stakes, of course.)  Well, it isn’t because lawyers are somehow going to save us from this outcome.  For every lawyer out there who lobbies a state legislature to impose some new regulation to try to reduce carbon emissions, there will be another lawyer who ends up representing the industry that seeks to challenge that legislation in court.  That’s the nature of our profession.

But, our profession can try to do a few things to not be part of making the problem worse.

A lot of the discussion about what the future of the practice of law is going to look like involves embracing technology and regulatory questions about ways in which the traditional approach to lawyer regulation may be stifling innovation that would ultimately benefit consumers of legal services.  In my opinion, all of that should continue as quickly as we can move the conversation forward.  But, as we try to talk about what the future of the profession should look like, we ought to be bearing in mind many of these much larger issues.

What can we do to make sure that technological solutions are used so that people in the court system do not have to make multiple, ultimately unnecessary, trips across town for court when nothing happens that couldn’t be handled over the telephone or by video conference or web stream if courts would permit that to occur?

What options should we be considering empowering so that fewer disputes go into the traditional court system at all if they could be resolved through online dispute resolution?  What can we do to try to better fashion courts into places that can themselves be resolving disputes online?

What can we do to persuade those remaining jurisdictions that have been unwilling to move to electronic filing to give up the fight and swiftly enact electronic filing?

Pursuit of these sorts of initiatives can save an incremental number of natural resources.

And, why can our profession readily get comfortable with relaxing the artificial barriers we impose on the ability of a lawyer licensed in one state to actively practice law in another state only in the aftermath of disasters?  Many states have issued ethics opinions in the wake of various weather disasters or passed court rules to permit flexibility for out-of-state lawyers to go to the disaster area and render legal assistance without fear of being accused of unauthorized practice of law.  My own state did so a few years back.

The ABA very recently just issued Formal Ethics Opinion 482 encouraging lawyers to be ready for disasters and to plan ahead to protect their own practice and protect their clients’ cases and matters from adverse impact in the wake of disasters.  The ethics opinion gives very good guidance and, perhaps, it gave that guidance far enough in advance of the devastating impact that Hurricane Michael is currently inflicting on a part of the world where my family has vacationed every summer for the last almost 20 years, Apalachicola and St. George Island, Florida, so that lawyers in that part of the world knew enough to have been prepared in advance.

The IPCC report presents a pretty clear indication of the coming disaster if radical change is not undertaken.  Overhauling the regulation of the legal system to remove artificial barriers to cross-border practice and barriers that prevent technology from making it easier for clients to find lawyers and for lawyers to practice law without unnecessarily wasting resources seem like some things that amount to the least our profession can do to not be part of making worst-case scenarios even more likely to come to pass.